|
[1999] 3
S.C.R. |
R. v. |
533 |
Donald John Marshall, Jr. Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for New Brunswick,
the West Nova Fishermen's Coalition,
the Native Council of Nova Scotia
and the Union of New Brunswick Indians Interveners
Indexed
as: R. v.
File
No.: 26014.
1999: November 17.
Present: Lamer C.J. and
L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci and Binnie JJ.
MOTION FOR REHEARING AND
STAY
Indians
-- Treaty rights -- Fishing rights -- Accused, a Mi'kmaq Indian, acquitted of
charges of fishing in violation of federal fishery regulations -- Accused found
to possess treaty rights exempting him from compliance with regulations --
Whether accused should have been acquitted absent new or further trial to
determine justification of regulations -- Whether government can regulate
treaty right to fish by licensing regulations and closed seasons -- Scope of
government power to regulate treaty right --Whether judgment should be stayed
pending disposition of rehearing if so ordered.
Appeals
-- Supreme Court of
An
intervener in the
Held:
The motion for a rehearing and stay of the judgment should be dismissed.
In
light of the extended definition of "party" in Rule 1 of the Supreme
Court Rules, this Court has jurisdiction to entertain an intervener's
application for a rehearing but will only do so in exceptional circumstances.
Not only are there no such circumstances here but the intervener's application
also violated the basis on which an intervener is permitted to participate in
the appeal in the first place, namely acceptance of the record as defined by
the Crown and the defence. In so far as the Coalition's questions are capable
of being answered on the trial record in this case, the responses are already
evident in the majority judgment and the prior decisions of this Court referred
to therein.
The
Crown elected not to try to justify the licensing or closed season restriction
on the eel fishery in this prosecution, but the resulting acquittal cannot be
generalized to a declaration that licensing restrictions or closed seasons can
never be imposed as part of the government's regulation of the Mi'kmaq limited
commercial "right to fish". The factual context for justification is
of great importance and the strength of the justification may vary depending on
the resource, species, community and time.
The
federal and provincial governments have the authority within their respective
legislative fields to regulate the exercise of a treaty right where justified
on conservation or other grounds. The
The
Coalition's application is based on a misconception of the scope of the Court's
majority judgment of
Cases Cited
Distinguished:
Reference
re Manitoba Language Rights, [1985] 1 S.C.R. 721; M.
v. H., [1999] 2 S.C.R. 3; applied: R.
v. Badger, [1996] 1 S.C.R. 771; referred to: R.
v. Sparrow, [1990] 1 S.C.R. 1075; Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010; R.
v. Nikal, [1996] 1 S.C.R. 1013; Reference
re Secession of Quebec, [1998] 2 S.C.R. 217; R.
v. Adams, [1996] 3 S.C.R. 101; R.
v. Gladstone, [1996] 2 S.C.R. 723; R.
v. Côté, [1996] 3 S.C.R. 139.
Statutes and Regulations
Cited
Aboriginal Communal
Fishing Licences Regulations, SOR/93-332 [am. SOR/94-390].
Constitution Act, 1982, s. 35.
Fisheries Act, R.S.C., 1985, c. F-14,
ss. 7(1), 43 [am. 1991, c. 1, s. 12].
Fishery (General)
Regulations,
SOR/93-53, s. 35(2).
Maritime Provinces
Fishery Regulations,
SOR/93-55, Sch. III, item 2.
Rules of the Supreme
Court of Canada,
SOR/83-74, Rules 1, 27.
Supreme Court Act, R.S.C., 1985, c. S-26,
s. 53.
MOTION
FOR REHEARING AND STAY of R.
v. Marshall, [1999] 3 S.C.R. 456. Motion dismissed.
Written
submissions by A. William Moreira, Q.C., for the applicant
the West Nova Fishermen's Coalition.
Written
submissions by Bruce H. Wildsmith, Q.C., for Donald John
Marshall, Jr., respondent on the motion.
Written
submissions by Graham Garton, Q.C., and Robert J. Frater,
for Her Majesty the Queen, respondent on the motion.
Written
submissions by D. Bruce Clarke, for the Native Council of Nova
Scotia, respondent on the motion.
Written
submissions by Henry J. Bear, for the Union of New Brunswick
Indians, respondent on the motion.
The
following is the judgment delivered by
1 THE
COURT -- The intervener, the West Nova Fishermen's Coalition (the
"Coalition"), applies for a rehearing to have the Court address the
regulatory authority of the Government of Canada over the east coast fisheries
together with a new trial to allow the Crown to justify for conservation or
other purposes the licensing and closed season restriction on the exercise of
the appellant's treaty right, and for an order that the Court's judgment, dated
September 17, 1999, [1999]
3 S.C.R. 456, be stayed in the meantime. The application is opposed by the
Crown, the appellant Marshall and the other interveners.
2 Those
opposing the motion object in different ways that the Coalition's motion rests
on a series of misconceptions about what the
3 The
Attorney General of
The
4 In
its majority judgment, the Court acquitted the appellant of charges arising out
of catching 463 pounds of eel and selling them for $787.10. The acquittal was
based on a treaty made with the British in 1760, and more particularly, on the
oral terms reflected in documents made by the British at the time of the
negotiations but recorded incompletely in the "truckhouse" clause of
the written treaty. The treaty right permits the Mi'kmaq community to work for
a living through continuing access to fish and wildlife to trade for
"necessaries", which a majority of the Court interpreted as
"food, clothing and housing, supplemented by a few amenities".
5 The
Coalition argues that the native and non-native fishery should be subject to
the same regulations. In fact, as pointed out in the
6 As
further pointed out in the
No Stay of Judgment
Status of the West Nova
Fishermen's Coalition
9 Those
in opposition challenge the status of the Coalition to bring this application.
It is argued that the Coalition, being an intervener, does not have the rights
of a party to ask for a rehearing. The Coalition was added as an intervener to
this proceeding by order dated
10 The
Coalition requests a rehearing on the following issues:
1 Whether
the Appellant is entitled to have been acquitted on a charge of unlicensed sale
of fish, contrary to s. 35(2) of the Fishery (General) Regulations, in
the absence of a new (or further) trial on the issue of whether that Regulation
is or can be justified by the government of Canada;
2 Whether
the Appellant is entitled to have been acquitted on a charge of out-of-season
fishing, contrary to Item 2 of Schedule III of the Maritime Provinces
Fishery Regulations, in the absence of a new (or further) trial on the
issue of whether those Regulations are or can be justified by the government of
Canada;
3 Whether
the government of
4 Whether
the government of
5 In
any event, what is the scope of regulatory power possessed by the government of
6 ...
pursuant to section 27 of the Rules of the Supreme Court of Canada,
[requests] an Order that [the Court's] judgment pronounced herein on the 17th
day of September, 1999 be stayed pending disposition of the rehearing of the
appeal, if ordered.
11 These
questions, together with the Coalition's request for a stay of judgment,
reflect a basic misunderstanding of the scope of the Court's majority reasons
for judgment dated
12 An
order suspending the effect of a judgment of this Court is infrequently
granted, especially where (as here) the parties have not requested such an
order. This was not a reference to determine the general validity of
legislative and regulatory provisions, as was the case, for example, in Reference
re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 780, where
the Court suspended its declaration of invalidity of Manitoba enactments until
"the expiry of the minimum period required for translation, re-enactment,
printing and publishing". Nor was this a case where the Court was asked to
grant declaratory relief with respect to the invalidity of statutory
provisions, as in M.
v. H., [1999] 2 S.C.R. 3, where the Court suspended the effect of its
declaration of invalidity of the definition of "spouse" for the
purpose of s. 29 of the Ontario Family Law Act, R.S.O. 1990, c. F.3, for
a period of six months to enable the legislature to consider appropriate
amendments.
14 As
stated in para. 56 of the September 17, 1999 majority judgment, the treaty
right was "to continue to obtain necessaries through hunting and fishing
by trading the products of those traditional activities subject to
restrictions that can be justified under the Badger test"
(emphasis added). The Badger test (R.
v. Badger, [1996] 1 S.C.R. 771) will be discussed below. The Crown, as
stated, did not offer any evidence or argument justifying the licensing and
closed season restrictions (referred to in the statute and regulations as a
"close time") on the appellant's exercise of the collective treaty
right, such as (for example) a need to conserve and protect the eel population.
The eel population may not in fact require protection from commercial
exploitation. Such was the assertion of the Native Council of Nova Scotia in
opposition to the Coalition's motion:
.
. . Mr. Marshall was fishing eels. There are no possible conservation issues
involving the eel fishery. They are not an endangered species and there is no
significant non-native commercial fishery. They are a traditional harvest
species, being harvested by Mr. Marshall in a traditional method and in
relatively small quantities. There is simply no justificatory evidence that the
Crown could have led.
The
Attorney General of Canada's written argument on the appeal to this Court
specifically stated that "[s]ince no such treaty rights have been
established in this case, then there was no requirement for the Crown to
justify its Fisheries Act regulations in accordance with . . . R. v.
Sparrow [supra] or R. v. Gladstone [[1996]
2 S.C.R. 723]". The written argument of the Attorney General for
Grounds
on Which the Coalition Seeks a Rehearing
15 The
appellant, as any other citizen facing a prosecution, is entitled to know in a
timely way the case he has to meet, and to be afforded the opportunity to
answer it. The Coalition seeks a new trial on a new issue. The
was always subject to
regulation. The Crown does not suggest that the regulations in question
accommodate the treaty right. The Crown's case is that no such treaty right
exists. Further, no argument was made that the treaty right was extinguished
prior to [enactment of the Constitution Act, 1982], and no
justification was offered by the Crown for the several prohibitions at issue in
this case. [Emphasis added.]
The Attorney General of Canada
affirms in opposition to the Coalition's motion the limited nature of the
issues raised at trial:
In this case, the intervener
wishes to contest the appellant's entitlement to an acquittal by raising issues
as to whether the regulations under which the appellant was charged could be
justified in accordance with the test in R. v. Sparrow. That would
clearly be a new issue in the proceedings. It is not open to the intervener
to raise an issue that did not arise between the parties to the appeal.
[Emphasis added.]
In its Reply, the Coalition
argues that to require the parties to deal with the issue of regulatory
justification in the same trial as treaty entitlement "would be to impose
an unreasonable and unworkable burden in aboriginal rights litigation at the
trial level". Whatever may be the advantages or disadvantages of splitting
these issues into a two-stage trial, no such proposal was made to the trial
judge by the parties, and no such procedure was considered, much less adopted,
in this case. As stated, the Crown here opposes a rehearing and opposes a new
trial. The issues of concern to the Coalition largely relate to the lobster
fishery, not the eel fishery, and, if necessary, can be raised and decided in
future cases that involve the specifics of the lobster fishery. It is up to the
Crown to initiate enforcement action in the lobster and other fisheries if and
when it chooses to do so.
. . . the British signed a
series of agreements with individual Mi'kmaq communities in 1760 and 1761
intending to have them consolidated into a comprehensive Mi'kmaq treaty that
was never in fact brought into existence. The trial judge, Embree Prov. Ct. J.,
found that by the end of 1761 all of the Mi'kmaq villages in
The British Governor in
18 The
In the circumstances, the
purported regulatory prohibitions against fishing without a licence (Maritime
Provinces Fishery Regulations, s. 4(1)(a)) and of selling eels
without a licence (Fishery (General) Regulations, s. 35(2)) do prima
facie infringe the appellant's treaty rights under the Treaties of 1760-61
and are inoperative against the appellant unless justified under the Badger
test. [Emphasis added.]
19 At
the end of the day, it is always open to the Minister (as it was here) to seek
to justify the limitation on the treaty right because of the need to conserve
the resource in question or for other compelling and substantial public
objectives, as discussed below. Equally, it will be open to an accused in
future cases to try to show that the treaty right was intended in 1760 by both
sides to include access to resources other than fish, wildlife and
traditionally gathered things such as fruits and berries. The word
"gathering" in the
20 The
22 Resource
conservation and management and allocation of the permissible catch inevitably
raise matters of considerable complexity both for Mi'kmaq peoples who seek to
work for a living under the protection of the treaty right, and for governments
who seek to justify the regulation of that treaty right. The factual context,
as this case shows, is of great importance, and the merits of the government's
justification may vary from resource to resource, species to species, community
to community and time to time. As this and other courts have pointed out on many
occasions, the process of accommodation of the treaty right may best be
resolved by consultation and negotiation of a modern agreement for
participation in specified resources by the Mi'kmaq rather than by litigation.
La Forest J. emphasized in Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010 (a case cited in the
On
a final note, I wish to emphasize that the best approach in these types of
cases is a process of negotiation and reconciliation that properly considers
the complex and competing interests at stake.
3 Whether
the government of
24 The
government's power to regulate the treaty right is repeatedly affirmed in the
In my view, the treaty rights
are limited to securing "necessaries" (which I construe in the modern
context, as equivalent to a moderate livelihood), and do not extend to the
open-ended accumulation of wealth. The rights thus construed, however, are, in
my opinion, treaty rights within the meaning of s. 35 of the Constitution
Act, 1982, and are subject to regulations that can be justified under
the Badger test. . . . [Emphasis added.]
At para. 38, the majority
judgment noted that:
Dr. Patterson went on to
emphasize that the understanding of the Mi'kmaq would have been that these
treaty rights were subject to regulation, which I accept.
At para. 58, the limited
nature of the right was reiterated:
What is contemplated therefore
is not a right to trade generally for economic gain, but rather a right to
trade for necessaries. The treaty right is a regulated right and can be
contained by regulation within its proper limits. [Emphasis added.]
At para. 64, the majority
judgment again referred to regulation permitted by the Badger test. The
Court was thus most explicit in confirming the regulatory authority of the
federal and provincial governments within their respective legislative fields
to regulate the exercise of the treaty right subject to the constitutional
requirement that restraints on the exercise of the treaty right have to be
justified on the basis of conservation or other compelling and substantial
public objectives, discussed below.
25 With
all due respect to the Coalition, the government's general regulatory power is
clearly affirmed. It is difficult to believe that further repetition of this
fundamental point after a rehearing would add anything of significance to what
is already stated in the
. . . under the applicable
regulatory regime, the appellant's exercise of his treaty right to fish and
trade for sustenance was exercisable only at the absolute discretion of the
Minister. Mi'kmaq treaty rights were not accommodated in the Regulations
because, presumably, the Crown's position was, and continues to be, that no
such treaty rights existed. In the circumstances, the purported regulatory
prohibitions . . . are inoperative against the appellant unless justified
under the Badger test. [Emphasis added.]
27 Although
no evidence or argument was put forward to justify the licensing requirement in
this case, a majority of the Court nevertheless referred at para. 64 of its
With
respect to licensing, the appellant [aboriginal accused] takes the position
that once his rights have been established, anything which affects or
interferes with the exercise of those rights, no matter how insignificant,
constitutes a prima facie infringement. It is said that a licence by its
very existence is an infringement of the aboriginal right since it infers that
government permission is needed to exercise the right and that the appellant is
not free to follow his own or his band's discretion in exercising that right.
This
position cannot be correct. It has frequently been said that rights do not
exist in a vacuum, and that the rights of one individual or group are
necessarily limited by the rights of another. The ability to exercise personal
or group rights is necessarily limited by the rights of others. The government
must ultimately be able to determine and direct the way in which these rights
should interact. Absolute freedom in the exercise of even a Charter or
constitutionally guaranteed aboriginal right has never been accepted, nor was
it intended. Section 1 of the Canadian Charter of Rights and Freedoms is
perhaps the prime example of this principle. Absolute freedom without any
restriction necessarily infers a freedom to live without any laws. Such a
concept is not acceptable in our society.
4 Whether
the government of
29 The
regulatory device of a closed season is at least in part directed at
conservation of the resource. Conservation has always been recognized to be a
justification of paramount importance to limit the exercise of treaty and
aboriginal rights in the decisions of this Court cited in the majority decision
of
30 In
this case, the prosecution of the appellant was directed to a "closed
season" in the eel fishery which the Crown did not try to justify, and
that is the precise context in which the majority decision of
5 In
any event, what is the scope of regulatory power possessed by the government of
31 On
the face of it, this question is not raised by the subject matter of the
appeal, nor is it capable of being answered on the factual record. As framed,
it is so broad as to be incapable of a detailed response. In effect, the
Coalition seeks to transform a prosecution on specific facts into a general
reference seeking an advisory opinion of the Court on a broad range of
regulatory issues related to the east coast fisheries. As was explained in Reference
re Secession of Quebec, [1998] 2 S.C.R. 217, the Court's jurisdiction
to give advisory opinions is exceptional and can be invoked only by the
Governor in Council under s. 53 of the Supreme Court Act, R.S.C., 1985,
c. S-26. In this instance, the Governor in Council has not sought an advisory
opinion from the Court and the Attorney General of Canada opposes the
Coalition's attempt to initiate what she calls a "private reference".
In Sparrow, at p. 1113,
it was held that in considering whether an infringement of aboriginal or treaty
rights could be justified, the following questions should be addressed sequentially:
First, is there a valid
legislative objective? Here the court would inquire into whether the
objective of Parliament in authorizing the department to enact regulations
regarding fisheries is valid. The objective of the department in setting out
the particular regulations would also be scrutinized. . . .
At page 1114, the next step
was set out in this way:
If a valid legislative
objective is found, the analysis proceeds to the second part of the
justification issue. Here, we refer back to the guiding interpretive principle
derived from Taylor and Williams and Guerin, supra. That
is, the honour of the Crown is at stake in dealings with aboriginal peoples.
The special trust relationship and the responsibility of the government
vis-à-vis aboriginals must be the first consideration in determining
whether the legislation or action in question can be justified. . . .
Finally, at p. 1119, it was
noted that further questions might also arise depending on the circumstances of
the inquiry:
These include the questions of
whether there has been as little infringement as possible in order to
effect the desired result; whether, in a situation of expropriation, fair
compensation is available; and, whether the aboriginal group in question has
been consulted with respect to the conservation measures being implemented.
The aboriginal peoples, with their history of conservation-consciousness and
interdependence with natural resources, would surely be expected, at the least,
to be informed regarding the determination of an appropriate scheme for the
regulation of the fisheries.
We would not wish to set
out an exhaustive list of the factors to be considered in the assessment of
justification. Suffice it to say that recognition and affirmation requires
sensitivity to and respect for the rights of aboriginal peoples on behalf of
the government, courts and indeed all Canadians. [Emphasis in original.]
33 The
majority judgment of
REGULATIONS
43.The Governor in
Council may make regulations for carrying out the purposes and provisions of
this Act and in particular, but without restricting the generality of the
foregoing, may make regulations
(a)for the proper
management and control of the sea-coast and inland fisheries;
(b)respecting the
conservation and protection of fish;
(c)respecting the
catching, loading, landing, handling, transporting, possession and disposal of
fish;
(d)respecting the
operation of fishing vessels;
(e)respecting the
use of fishing gear and equipment;
(e.1)respecting the
marking, identification and tracking of fishing vessels;
(e.2)respecting the
designation of persons as observers, their duties and their carriage on board
fishing vessels;
(f)respecting the
issue, suspension and cancellation of licences and leases;
(g)respecting the
terms and conditions under which a licence and lease may be issued;
(g.1)respecting any
records, books of account or other documents to be kept under this Act and the
manner and form in which and the period for which they shall be kept;
(g.2)respecting the
manner in which records, books of account or other documents shall be produced
and information shall be provided under this Act;
(h)respecting the
obstruction and pollution of any waters frequented by fish;
(i)respecting the
conservation and protection of spawning grounds;
(j)respecting the
export of fish or any part thereof from
(k)respecting the
taking or carrying of fish or any part thereof from one province to any other
province;
(l)prescribing the
powers and duties of persons engaged or employed in the administration or
enforcement of this Act and providing for the carrying out of those powers and
duties; and
(m) where a close time,
fishing quota or limit on the size or weight of fish has been fixed in respect
of an area under the regulations, authorizing persons referred to in paragraph
(l) to vary the close time, fishing quota or limit in respect of that
area or any portion of that area.
[Emphasis added.]
(Pursuant to this regulatory
power, the Governor in Council had, in fact, adopted the Aboriginal Communal
Fishing Licences Regulations, discussed below.) Although s. 7(1) of the Fisheries
Act purports to grant the Minister an "absolute discretion" to
issue or not to issue leases and licences, this discretion must be read
together with the authority of the Governor in Council under s. 43(f) to
make regulations "respecting the issue, suspension and cancellation of
licences and leases". Specific criteria must be established for the
exercise by the Minister of his or her discretion to grant or refuse licences
in a manner that recognizes and accommodates the existence of an aboriginal or
treaty right. In R.
v. Adams, [1996] 3 S.C.R. 101, also cited in the September 17, 1999
majority judgment, the Chief Justice stated as follows at para. 54:
In
light of the Crown's unique fiduciary obligations towards aboriginal peoples,
Parliament may not simply adopt an unstructured discretionary administrative
regime which risks infringing aboriginal rights in a substantial number of
applications in the absence of some explicit guidance. If a statute confers an
administrative discretion which may carry significant consequences for the
exercise of an aboriginal right, the statute or its delegate regulations
must outline specific criteria for the granting or refusal of that discretion
which seek to accommodate the existence of aboriginal rights. In the absence of
such specific guidance, the statute will fail to provide representatives of the
Crown with sufficient directives to fulfil their fiduciary duties, and the
statute will be found to represent an infringement of aboriginal rights under
the Sparrow test. [Emphasis added.]
While
34 The
Aboriginal Communal Fishing Licences Regulations, SOR/93-332, referred
to in the
35 Despite
the limitations on the Court's ability in a prosecution to address broader
issues not at issue between the Crown and the defence, the majority judgment of
36 (a)
The treaty right itself is a limited right. The
Catch limits that could
reasonably be expected to produce a moderate livelihood for individual Mi'kmaq
families at present-day standards can be established by regulation and enforced
without violating the treaty right. In that case, the regulations would
accommodate the treaty right. Such regulations would not
constitute an infringement that would have to be justified under the Badger
standard. [Underlining added; italics in original.]
38 Other
limitations apparent in the
It was established in Simon
[Simon
v. The Queen, [1985] 2 S.C.R. 387], at p. 402, that treaty provisions
should be interpreted "in a flexible way that is sensitive to the
evolution of changes in normal" practice, and Sundown [R.
v. Sundown, [1999] 1 S.C.R. 393], at para. 32, confirms that courts
should not use a "frozen-in-time" approach to treaty rights.
The
Mi'kmaq treaty right to participate in the largely unregulated commercial fishery
of 1760 has evolved into a treaty right to participate in the largely regulated
commercial fishery of the 1990s. The notion of equitable sharing seems to be
endorsed by the Coalition, which refers in its written argument on the motion
to "the equal importance of the fishing industry to both Mi'kmaq and
non-Mi'kmaq persons". In its Reply, the Coalition says that it is engaged
in discussions "with representatives of the Acadia and Bear River Bands in
southwestern Nova Scotia and takes pride that those discussions have been
productive and that there is reason to hope that they will lead to harmonious
and mutually beneficial participation in the commercial lobster fishery by
members of those Bands". Equally, the Mi'kmaq treaty right to hunt and trade
in game is not now, any more than it was in 1760, a commercial hunt that
must be satisfied before non-natives have access to the same resources for
recreational or commercial purposes. The emphasis in 1999, as it was in 1760,
is on assuring the Mi'kmaq equitable access to identified resources for the
purpose of earning a moderate living. In this respect, a treaty right differs
from an aboriginal right which in its origin, by definition, was exclusively
exercised by aboriginal people prior to contact with Europeans.
40 (b)The
paramount regulatory objective is the conservation of the resource. This
responsibility is placed squarely on the Minister and not on the aboriginal or
non-aboriginal users of the resource. The
41 (c)
The Minister's authority extends to other compelling and substantial public
objectives which may include economic and regional fairness, and recognition of
the historical reliance upon, and participation in, the fishery by
non-aboriginal groups. The Minister's regulatory authority is not limited
to conservation. This was recognized in the submission of the appellant
Although by no means making a
definitive statement on this issue, I would suggest that with regards to the
distribution of the fisheries resource after conservation goals have been met,
objectives such as the pursuit of economic and regional fairness, and the
recognition of the historical reliance upon, and participation in, the fishery
by non-aboriginal groups, are the type of objectives which can (at least in the
right circumstances) satisfy this standard. In the right circumstances,
such objectives are in the interest of all Canadians and, more importantly, the
reconciliation of aboriginal societies with the rest of Canadian society may
well depend on their successful attainment. [Emphasis in original.]
This observation applies with
particular force to a treaty right. The aboriginal right at issue in
42 In
the case of any treaty right which may be exercised on a commercial scale, the
natives constitute only one group of participants, and regard for the interest
of the non-natives, as stated in
The special trust relationship
and the responsibility of the government vis-à-vis aboriginals must be the
first consideration in determining whether the legislation or action in
question can be justified.
The special trust relationship
includes the right of the treaty beneficiaries to be consulted about
restrictions on their rights, although, as stated in Delgamuukw, supra,
at para. 168:
The nature and scope of the
duty of consultation will vary with the circumstances.
This variation may reflect
such factors as the seriousness and duration of the proposed restriction, and
whether or not the Minister is required to act in response to unforeseen or
urgent circumstances. As stated, if the consultation does not produce an
agreement, the adequacy of the justification of the government's initiative
will have to be litigated in the courts.
45 In
its written argument on this appeal, the Coalition also argued that no treaty
right should "operate to involuntarily displace any non-aboriginal
existing participant in any commercial fishery", and that "neither
the authors of the Constitution nor the judiciary which interprets it are the
appropriate persons to mandate who shall and shall not have access to the
commercial fisheries". The first argument amounts to saying that
aboriginal and treaty rights should be recognized only to the extent that such
recognition would not occasion disruption or inconvenience to non-aboriginal
people. According to this submission, if a treaty right would be disruptive,
its existence should be denied or the treaty right should be declared
inoperative. This is not a legal principle. It is a political argument. What is
more, it is a political argument that was expressly rejected by the political
leadership when it decided to include s. 35 in the Constitution Act, 1982.
The democratically elected framers of the Constitution Act, 1982
provided in s. 35 that "[t]he existing aboriginal and treaty rights of the
aboriginal peoples of
46 At
no stage of this appeal, either before or after
A Stay of the Broader
Effect of the
Disposition
48 The
Coalition's motion is dismissed with costs.
Motion dismissed.
Solicitors for the
applicant the West Nova Fishermen's Coalition: Daley, Black &
Moreira, Halifax.
Solicitor for Donald John
Marshall, Jr., respondent on the motion: Bruce H. Wildsmith,
Solicitor for Her Majesty
the Queen, respondent on the motion: The Attorney General of
Solicitors for the Native
Council of
Solicitors for the